Rapport définitif - Rapport No. 396, Octobre 2021

1. 189. The complaint is contained in a communication dated 3 June 2015 submitted by the National Union of Workers in the Production, Distribution and Consumption of Food, Beverages and other services provided in Clubs, Hotels, Restaurants and Similar of Colombia (HOCAR).
2. 190. The Government of Colombia transmitted its observations on the allegations in communications dated 16 May 2016 and 8 May 2019.
3. 191. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 192. In its communication dated 3 June 2015, the HOCAR trade union alleges that the Golf and Tennis Country Club (hereinafter “the enterprise”) committed a number of anti union acts with the aim of removing its branch established in the municipality of Sopó (hereinafter “the branch”), and that the decision of the High Court of the Judicial District of Cundinamarca to revoke the trade union registration of the branch in question, and the enterprise’s refusal to bargain collectively, violate Conventions Nos 87, 98 and 154.
2. 193. The complainant organization states that it is an industrial trade union with over 4,000 members throughout the country and that it is affiliated to the General Confederation of Labour (CGT). It states that on 9 November 2009, workers employed by the enterprise met in Sopó, in the department of Cundinamarca, and 27 of them signed the minutes of the meeting that established the branch.
3. 194. According to the complainant organization, since the branch was established the enterprise has been carrying out premeditated and systematic anti-union acts targeting its members and officials. It maintains that the enterprise, in bad faith, put a number of obstacles in the way of the list of demands it submitted on 9 November 2012. The complainant organization states that as the list of demands was not resolved in the direct settlement phase an arbitration tribunal was set up to resolve it, which issued an arbitration award on 26 May 2014. It states that the enterprise lodged an extraordinary appeal to annul the arbitration award, proceedings that are pending before the Labour Appeals Chamber of the Supreme Court of Justice.
4. 195. The complainant organization states that since the submission of the list of demands, the enterprise has done all it can to destroy the branch, leading to resignations by its members as a result of threats, handouts and promises that constitute anti-union conduct that is prohibited and punishable under Act No. 27 of 1976, section 354 of the Substantive Labour Code (CST) and section 200 of the Penal Code.
5. 196. The complainant organization also states that, in a letter dated 17 February 2015, the chief of human resources of the enterprise informed the workers affiliated to the HOCAR trade union that the trade union organization had ceased to exist legally and consequently it could not continue to operate except solely and exclusively for the purposes of its liquidation and dissolution.
6. 197. The complainant organization states that the enterprise brought two legal actions seeking the dissolution, liquidation and revocation of the legal personality of the branch on the grounds that the number of members of the branch was lower than the minimum required under the CST. It states that the first claim was decided in favour of the branch in a judgment dated 27 November 2014 handed down by the Single Labour Judge of the Girardot Circuit and that this ruling was not appealed.
7. 198. The complainant organization explains that the second claim, which again sought the dissolution of the branch, was decided in its favour on 19 March 2015 by the Single Labour Judge of the Circuit of Girardot, but the enterprise appealed against this ruling. It claims that, in the second instance, the High Court of the Judicial District of Cundinamarca, in a judgment dated 4 May 2015, and in a strangely expeditious manner, overturned the court’s judgment and in its place ordered the revocation of the trade union registration of the branch.
8. 199. According to the complainant organization, the judgment dated 4 May 2015 is manifestly contrary to Colombian labour law, among other reasons because the dissolution and revocation of trade union registration can only apply to trade unions, federations and confederations in accordance with section 401 of the CST and under no circumstances to industry trade unions like the HOCAR trade union. Moreover, it considers that the judgment fails to recognize the right of workers to establish and join organizations of their own choosing.
9. 200. With regard to the composition of the branch, the complainant organization reports that the judgment dated 4 May 2015 uses a statement made before an arbitration tribunal and taken out of context to establish that the branch went from having 30 to 13 workers.
10. 201. The complainant organization also states that this judgment does not take account of the fact that when the trade union submitted the list of demands and during the collective dispute, the enterprise punished the trade union officials, dismissed one member and pressured 16 workers into leaving the trade union. The complainant organization states that the decision deems the passages of the arbitration award of 26 May 2014 that are unfavourable to the branch to be conclusive evidence, but disregards the serious allegations of trade union persecution of its officials and members.
11. 202. According to the complainant organization, Convention No. 98 and the right to protection against anti-union discrimination have also been violated. In particular, it states that the enterprise makes continuity in employment conditional on the worker not joining the trade union or on leaving it, and that it penalizes some workers because of their union membership, misusing the “ius variandi” and changing the conditions to disadvantage the worker.
12. 203. The complainant organization also states that Convention No. 154 and Act No. 411/1997 are also constantly being violated by the enterprise, which refuses to find peaceful solutions to disputes that arise in relation to the determination of unionized workers’ terms and conditions of employment and which conducts internal disciplinary proceedings that are not independent and impartial using unqualified individuals, the outcome of which is predetermined, systematically violating the right to defence and to due process by accusing and judging without evidence.
13. 204. In this respect, the complainant organization specifically alleges that the enterprise: (i) initiated unfounded disciplinary proceedings against the members and officials of the branch, including Mr Juan Domingo Casas, who was dismissed, and Mr Ricaute Ortiz, Ms Adriana Ballen and Mr Carlos Augusto Segura, who were suspended for 3, 8 and 60 days, respectively; (ii) denied the branch’s members the right to object to the internal workplace rules; (iii) sent communications to recently unionized members reproaching them for lawfully exercising their trade union membership; (iv) failed to make timely contributions to the pension fund of Ms Helena Prieto and required her to leave the union as a condition for it to make the contributions to the pension fund that she was due (over three years’ worth of contributions); and (v) denied its members the right to wage mobility for two years and five months, while it increased the wages of two workers three months after they left the union.
14. 205. The complainant organization indicates that, in view of the acts of trade union persecution mentioned, the unionized workers lodged administrative complaints with the labour inspectorate in the city of Zipaquirá on 28 May 2013 (file No. 232-139) and with the Ministry of Labour (Territorial Directorate of Cundinamarca) on 3 September 2013. It also indicates that on 13 May 2013 a criminal complaint was submitted against the enterprise to the Public Prosecutor’s Office (No. 0142123), for acts undermining the right to freedom of association. The complainant organization states that to date it has not had any results in relation to the above actions.
15. 206. The complainant organization states that the workers and officials in the branch exhausted all the administrative and judicial channels in Colombia, without obtaining a favourable decision or judgment to restore its right to freedom of association. It states that in Colombia there are no adequate administrative or judicial remedies against acts of anti-union discrimination and that this is leading to the disappearance of workers’ organizations.

B. The Government’s reply

1. 207. In its communication dated 16 May 2016, the Government submitted the enterprise’s reply, which underlines that at the present time the trade union HOCAR does not represent any of its workers, including those that previously belonged to the branch, and that consequently the complainant organization may neither lodge a complaint nor mention any alleged violations of freedom of association, the right to organize and collective bargaining in particular.
2. 208. Regarding the list of demands submitted by the complainant organization, the enterprise denies the allegations and indicates that it has never acted in bad faith and that it would be difficult to put obstacles in the way of a list of demands that was drawn up directly by the members of the trade union organization and that was discussed by the officials of the trade union organization and the negotiating committee that the enterprise appointed in accordance with the terms and stages stipulated in labour law.
3. 209. The enterprise also refutes the allegations of anti-union conduct that allegedly led to members leaving the branch and denounces the numerous complaints lodged by the trade union organization before the administrative authorities, all of them reckless and not backed up by any evidence.
4. 210. With regard to the letter dated 17 February 2015 sent by its chief of human resources, the enterprise indicates that it is true that using a variety of means the officials of the trade union organization were informed that, in accordance with section 359 of the CST, which establishes the minimum number of members that all trade union organizations in Colombia must have, the branch had fewer than 25 affiliated workers, which was why it could not continue to exist and that its sole function was to proceed with its liquidation and dissolution.
5. 211. The enterprise also states that it is true that the High Court of Cundinamarca revoked the judgment handed down in first instance, which had disregarded Colombian legal provisions in respect of the minimum number of members that a trade union organization in Colombia should have, and which had not taken due account of the evidence submitted by the enterprise. Instead, the judgment handed down in second instance ordered, in accordance with the law, the revocation of the trade union registration of the branch of the HOCAR trade union.
6. 212. With respect to the allegations that it punished the trade union officials, dismissed one member and pressured 16 workers into leaving the trade union, the enterprise states that these are merely subjective views of the complainant organization, not only reckless but also wrong, as the enterprise neither punished nor dismissed any worker unjustly. The enterprise maintains that all the disciplinary proceedings it has initiated against its workers have been fully compliant with all legal and constitutional requirements in accordance with due process. It states that if some workers left the trade union it was as a result of the bad policies and appalling union guidance it instilled in its affiliated workers and that as they did not agree with the guidance given, those members decided freely and voluntarily to leave the trade union organization. With respect to the allegations concerning complaints of trade union persecution, the enterprise also maintains that it would have been difficult for the second instance judge to rule on matters entirely unknown to him and that had nothing to do with the claim that the enterprise brought against the trade union organization for the revocation of the trade union registration of the branch. With regard to the composition of the branch, the enterprise indicates that the judgment of 4 May 2015 did not accept any statement taken out of context and concluded in effect that there were 13 workers in the trade union organization, and that consequently it could not legally exist.
7. 213. With respect to the allegation relating to the case of Ms Prieto, the enterprise states that it is a claim by the complainant organization concerning a person with whom it has no legitimate connection, based on entirely non-existent facts that are wholly untrue. It states that to date it has received no complaints, either verbally or in writing, from Ms Prieto concerning contributions for the recognition of her pension.
8. 214. The enterprise also indicates, regarding the alleged denial of the right to wage mobility for union members, that if the wages of unionized workers have not been raised, this is due to the fact that the trade union organization opted to submit the collective dispute to an arbitration tribunal and that at the present time it is being heard by the Supreme Court of Justice.
9. 215. After communicating the position of the enterprise, the Government provides its own observations about the complaint. The Government refers first to the action of the labour inspectorate of Zipaquirá, which: (i) on 28 May 2013 received a complaint from Ms Ballen, branch president, for alleged violation of the right to equality, alleged trade union persecution and alleged violation of the collective agreement (file No. 232–139); (ii) on 7 January 2015 received a complaint from Mr Manuel Bayona Espinosa, president of the HOCAR trade union, for alleged anti-union conduct (file No. 25–273); (iii) on 18 June 2015 combined the two complaints at the request of the complainants; (iv) on 26 May 2015 received a complaint from Mr David Polo Aguas, official of the HOCAR trade union, for alleged anti-union conduct (file No. 359–313), and responded to the complainant, requesting him to appear in the five working days following receipt in order to be notified of the decision to initiate an administrative preliminary investigation, but he did not come forward; and (v) received further complaints from Ms Ballen, on 28 April 2015 for alleged trade union persecution (file No. 263–301) and on 12 May 2015 for alleged workplace harassment (file No. 317–307). The Government supplements this information in its communication dated 8 May 2019, indicating that: (i) with regard to file No. 232–139, the enterprise was absolved and the administrative process was closed on 10 October 2018; (ii) with respect to file No. 263–301, the administrative investigation was closed on 9 October 2018 as there were no grounds for the initiation of administrative disciplinary proceedings against the enterprise; and (iii) with respect to file No. 317–307, the investigation was not pursued given that the complainant indicated on 14 October 2015 that he had ended his contract with the enterprise by mutual agreement and that he had no interest in pursuing the complaint.
10. 216. With regard to the extraordinary appeal lodged by the enterprise to annul the arbitration award, the Government, referring to the pronouncement by the Constitutional Court in judgment T–248 of 2014, indicates that protection of the right to collective bargaining does not imply per se reaching an agreement or obliging either of the parties to accept conditions that they do not agree with; what the Constitution seeks is to ensure that the corresponding conversations can go ahead. According to the Government, there was no violation of collective bargaining, and certainly no refusal by the enterprise to negotiate, given that all the stages of a collective bargaining process established by law in sections 433 and 434 of the CST were adhered to, right up to the arbitration award. It states that while it is true that the enterprise made use of its right to lodge an extraordinary appeal for annulment, it does not mean that it is violating Conventions Nos 98 and 154.
11. 217. Furthermore, regarding the alleged anti-union conduct by the enterprise that allegedly led to members leaving the branch, the Government indicates that the copies of the resignations provided by the complainant organization show that they were carried out in a voluntary manner by the members and that they occurred between 2009 and 2013, and that no other evidence is provided as proof of coercion, pressure or any type of conduct by the enterprise that gave rise to the resignations mentioned. The Government states that freedom of association is both the freedom to be a member and the freedom not to be a member of a trade union, and that if this were not the case the very right of association would be meaningless.
12. 218. With respect to the judgment of 4 May 2015, the Government refers to section 391–1 of the CST, which stipulates that any trade union can provide in its statutes for the establishment of sectional branches with no fewer than 25 members. Basing itself again on the case law of the Constitutional Court, the Government indicates that the enterprise was able to go to the ordinary courts to request the dissolution of the branch, and that in doing so it was not violating trade union rights, as the right of workers to belong to a trade union was not being restricted, given that the disappearance of the branch does not mean that they stop belonging to the trade union, in this case the HOCAR trade union.
13. 219. The Government also states that the High Court of the Judicial District of Cundinamarca is not restricting the right of association, it is simply exercising one of its functions, which is to rule on appeals lodged by the circuit labour courts. The Government indicates that the decisions taken in this case have been adopted in keeping with judicial processes in compliance with the requirements established in the Constitution and in the law.
14. 220. The Government states, furthermore, that it has taken all necessary action when called upon to do so in order to protect trade union rights through inspection and monitoring actions, and administrative investigations. Therefore it requests the Committee to invite the Governing Body not to pursue its examination of this matter.

The Committee’s recommendations

1. 230. In the light of its foregoing conclusions, which do not call for further examination, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts the Government will ensure that the totality of the administrative and criminal complaints relating to the present case have been duly examined in good time by the authorities with a view to ensuring full respect for freedom of association at the enterprise concerned.
   • (b) The Committee trusts that the Supreme Court of Justice will very soon rule on the appeal lodged by the enterprise to annul the arbitration award of 26 May 2014 and that the Public Prosecutor’s Office will clarify shortly the status of the complaint filed with it.
   • (c) The Committee considers that this case does not call for further examination and is closed.